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Bailout Recipients Hosted Call To Defeat Key Labor Bill

First Posted: 02/27/09 05:12 AM ET Updated: 05/25/11 02:00 PM ET

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Three days after receiving $25 billion in federal bailout funds, Bank of America Corp. hosted a conference call with conservative activists and business officials to organize opposition to the U.S. labor community's top legislative priority.

Participants on the October 17 call -- including at least one representative from another bailout recipient, AIG -- were urged to persuade their clients to send "large contributions" to groups working against the Employee Free Choice Act (EFCA), as well as to vulnerable Senate Republicans, who could help block passage of the bill.

Bernie Marcus, the charismatic co-founder of Home Depot, led the call along with Rick Berman, an aggressive EFCA opponent and founder of the Center for Union Facts. Over the course of an hour, the two framed the legislation as an existential threat to American capitalism, or worse.

"This is the demise of a civilization," said Marcus. "This is how a civilization disappears. I am sitting here as an elder statesman and I'm watching this happen and I don't believe it."


Donations of hundreds of thousands, if not millions, of dollars were needed, it was argued, to prevent America from turning "into France."

"If a retailer has not gotten involved in this, if he has not spent money on this election, if he has not sent money to [former Sen.] Norm Coleman and all these other guys, they should be shot. They should be thrown out their goddamn jobs," Marcus declared.


Earlier he argued: "As a shareholder, if I knew the CEO of the company wasn't doing anything on [EFCA]... I would sue the son of a bitch... I'm so angry at some of these CEOs, I can't even believe the stupidity that is involved here."


Audio of the conference call, which was obtained by the Huffington Post, is excerpted throughout this piece to provide a clearer insight into the pitched battle surrounding the Employee Free Choice legislation. At one point, relatively early in the call, Marcus joked that he "took a tranquilizer this morning to calm myself down."

"This bill may be one of the worst things I have ever seen in my life," he said, explaining that he could have been on "a 350-foot boat out in the Mediterranean," but felt it was more important to engage on this fight. "It is incredible to me that anybody could have the chutzpah to try and pass this bill in this election year, especially when we have an economy that is a disaster, a total absolute disaster."

The legislation -- which would allow workers to form a union either by holding a traditional election or having a majority of employees sign written forms -- is virtually certain to face a Republican filibuster. Obama and Senate Democrats have stated their commitment to the bill, though the timing of the vote remains a topic of heated debate.

Weeks before the November election, Marcus, Berman, and others saw this ominous political landscape taking shape. Hoping to aid opponents of EFCA in the Senate, they pleaded with participants on the call, mostly stock analysts or individuals with investment portfolios, to urge clients to prop up the campaigns of endangered Republican candidates, including Norm Coleman of Minnesota, Gordon Smith of Oregon, Mitch McConnell of Kentucky, Elizabeth Dole of North Carolina, and Roger Wicker of Mississippi.

"If there are not enough Republicans operating as a firewall, after this election it is going to be very difficult to hold the line," predicted Berman. "The only way after these elections if we don't have a filibuster proof Senate... is to make this issue so hot in some states so that even a Democrat who is up for election in 2010 has to think twice about whether or not they are going to let this thing go by."


At one point, another individual on the call suggested that participants send major contributions to Berman's organization as a way of affecting the election without violating the McCain-Feingold campaign finance law. "Some organizations have written checks for $250,000, $500,000, some $2 million for this," said the man, likely Steven Hantler, the director of free enterprise and entrepreneurship at Bernie Marcus' Marcus Foundation.

Citing the massive war chests that unions have brought to the EFCA fight, Marcus asked participants to make campaign donations rather than lobbying payments. "Fire all these guys in Washington," he said of the K-Street operators, "they are worthless anyway."

In an interview with the Huffington Post, Berman said that there "was nothing on that call that spoke to funneling money to anybody." Indeed, at a separate point, Marcus discussed the need to contribute to issue advocacy and education activities. The call, Berman continued, was designed to explain some of the economic implications of passing EFCA and was "one of a series with people around the country who are connected to businesses."

"There has been, though it has changed in the last few months, a fairly significant deficit in terms of understanding what this law is about," Berman said. "I know a number of business groups have held calls with people about the impact of this legislation... The unions who are a proponent of this have not made it a high profile issue. I think they have learned from their polling that it doesn't poll well, which is why they don't' want to make it a public issue."

As for the business community, Berman added, "I do think that most businesspeople fully appreciate the damage that out-of-control labor leaders have caused for other businesses. There is no appetite for finding out if you are going to have to be the next business to deal with other labor issues."

A Bank of America spokesman declined a request for public comment, and the bank's representative on the call played a minor role. The conference call was referenced in a November 5 Bank of America research document, in which the company noted that EFCA "increases the likelihood that retailers would be unionized, which could drive higher labor cost at retail." On "the flip side," however, the document said the bill would increase the "spending power of lower income consumers as this would be a de facto wage and benefit increase."

As evidenced by its dual interpretation of the legislation, Bank of America's role in the EFCA fight is a bit murky. The company, as stated by an official there, hosted the call for the purposes of equity research, meaning that their goal was to represent the opinions of clients and not the bank itself. But their involvement in an effort to drum up support for defeating the labor-backed legislation, so soon after getting bail out funds from the federal government, left a bad taste in the mouth of some union officials.

"Bank of America is now not only getting bailout money. They are lending their name to participate in a campaign to stop workers from having a majority sign up [provision]," said Stephen Lerner, Director of the Private Equity Project at SEIU. "The biggest corporations who have created the problem are, at the very time, asking us to bail them out and then using that money to stop workers from improving their lives."

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